Grauer v. Comm'r ( 2016 )

T.C. Memo. 2016-52
UNITED STATES TAX COURT
PAUL W. GRAUER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21645-13L. Filed March 22, 2016.
Paul W. Grauer, pro se.
Briseyda Villalpando and Mayah Sohl-Cade, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
FOLEY, Judge: The issue for decision is whether respondent is permitted,
pursuant to section 6502, to collect petitioner’s 1998 tax liability.1
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect at all relevant times.
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[*2] FINDINGS OF FACT
On April 6, 2000, petitioner filed his 1998 Federal income tax return. He
reported $103,495 of taxable income, a $40,637 tax liability, and a $38,577
balance due. Respondent, on May 8, 2000, assessed a $57,698 tax liability against
petitioner.2 Respondent’s account transcript relating to 1998 indicates that on July
13, 2001, respondent received a signed return receipt relating to a notice of intent
to levy.3 On October 2, 2001, the parties executed Form 900, Tax Collection
Waiver, on which the 10-year period of limitation for collection was extended
until “May 8, 20015”. Respondent’s account transcript relating to 1998 further
indicates that on October 3, 2001, petitioner entered into an installment agreement;
on February 20, 2006, the installment agreement was terminated; and from 2006 to
2012 respondent issued petitioner balance due notices.
Respondent, on February 11, 2013, issued petitioner a notice of intent to
levy relating to 1998. On March 7, 2013, respondent received petitioner’s Form
12153, Request for a Collection Due Process or Equivalent Hearing. During a
2
The tax liability included the $40,637 tax reported on the return, a
$1,844.44 estimated tax penalty, an $8,693.32 failure to timely file addition to tax,
a $2,511.40 failure to timely pay addition to tax, and $4,011.47 of interest.
3
After trial, and in response to an order from the Court, respondent
contended that this entry was incorrect.
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[*3] June 18, 2013, face-to-face collection due process hearing, petitioner
contended that a typographical error (i.e., the waiver’s “May 8, 20015” expiration
date) renders the waiver invalid; the waiver was not agreed to in connection with
an installment agreement; and the period of limitation for collection relating to
1998 had expired before respondent issued the February 11, 2013, notice of intent
to levy. Respondent, on August 19, 2013, issued petitioner a notice of
determination sustaining the proposed collection action. On September 17, 2013,
petitioner, while residing in Illinois, timely filed a petition with the Court.
OPINION
The Court has jurisdiction to determine its jurisdiction over a particular
case. See Kluger v. Commissioner, 83 T.C. 309, 314 (1984). Respondent’s
account transcript indicates that this case relates to a collection due process
hearing that was conducted following a second notice of intent to levy relating to
1998. The Court does not have jurisdiction to review respondent’s determination
relating to such a hearing. See Orum v. Commissioner, 123 T.C. 1, 10-12 (2004),
aff’d, 412 F.3d 819 (7th Cir. 2005). Respondent contends, however, that his
account transcript is inaccurate, and he did not issue a notice of intent to levy
during 2001. Furthermore, no direct evidence of such a notice was produced by
either party. Accordingly, we agree with respondent that his account transcript is
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[*4] inaccurate and that we have jurisdiction to review his determination relating
to the February 11, 2013, notice of intent to levy.
Petitioner contends that he did not enter into an installment agreement, the
waiver is thus invalid, and the 10-year period of limitation for collection has
expired.4 See sec. 6502(a) (stating that the period of limitation for collection may
be extended by waiver if the extension is agreed to at the same time an installment
agreement is entered into). Petitioner’s contention is an affirmative defense, and
petitioner has met his burden of establishing a prima facie case that the notice of
intent to levy was issued 10 years after respondent’s assessment. See Jordan v.
Commissioner, 134 T.C. 1, 5-6 (2010). Respondent bears the burden of
production relating to proving an exception to the 10-year period of limitation for
collection (i.e., whether petitioner signed a waiver at the time an installment
agreement was entered into). See sec. 6502(a)(2)(A); Jordan v. Commissioner,
134 T.C. 6. Respondent has not met his burden.
Respondent produced a waiver relating to 1998, on which the parties
extended the 10-year period of limitation for collection. He did not, however,
4
Petitioner’s contention constitutes a challenge to the underlying tax
liability. See Jordan v. Commissioner, 134 T.C. 1, 8 n.6 (2010); Boyd v.
Commissioner, 117 T.C. 127, 130 (2001). Thus, we review this matter de novo.
See Davis v. Commissioner, 115 T.C. 35, 39 (2000).
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[*5] produce an installment agreement that was entered into in connection with the
waiver. See sec. 6502(a)(2)(A). In fact, respondent’s only evidence that such an
agreement exists is an account transcript that he concedes is inaccurate and an
indecipherable and unconvincingly explained collection of numerical codes.
Accordingly, we find that an installment agreement was not agreed to in
connection with the waiver, and the 10-year period of limitation for collection has
expired.
To reflect the foregoing,
Decision will be entered
for petitioner.